TMI Blog2010 (7) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 482 Cr.P.C. for quashing of complaints under section 138 N.I. Act on the ground that learned MMs cannot recall their own orders of summoning and it is the High Court that should consider that the complaint under section 138 of N.I. Act was not maintainable against the petitioners. Reliance is placed on Adalat Prasad vs. Rooplal Jindal and Others; (2004) 7 SCC 338 to press the point that the petitioners have no other alternative but to approach the High Court. While Adalat Prasad case (supra) laid down that if a Magistrate takes cognizance of an offence and issues process, without there being any allegations against the accused or any material implicating the accused, the order of Magistrate may be vitiated, but the relief, an aggrieved accused can obtain at that stage is not by invoking Section 207 of Cr.P.C.. The remedy lies in invoking section 482 Cr.P.C. It is clear from the Judgment of Adalat Prasad case (supra) that Section 482 of Cr. P.C. can be resorted to only where the High Court is called upon to examine the complaint and material available before the Trial Court at the time of summoning per se to arrive at a conclusion that no case was made out against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a cheque is issued by a person, it must be honoured and if it is not honoured, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he must face the criminal trial and consequences. However, the effort of some of the petitioners is to teach a lesson to complainant for approaching court of law. The amount of cheque is not paid despite demand notice and the complainant is made to suffer further by prolonging the litigation carrying it from one forum to other. In many cases, the petitioners do have genuine defence, but, due to mis-reading of the provisions of N.I. Act and Cr.P.C., it is considered that the only option available is to approach the High Court and on this the High Court is made to step into the shoes of Metropolitan Magistrate and examine their defence first and exonerate them. I consider that this situation is arising because of the fact that MMs at lower court are not following the mandate of the statute of conducting trial of cases under section 138 of N.I. Act in a summary manner and despite amendment in N.I. Act continue trying these cases as summon trial cases and a long drawn procedure is followed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust exceptions be read in evidence in any enquiry, trial or other proceedings under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution of the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. 6. Summary trial procedure is given under sections 260 to 265 of Cr. P.C. As per this procedure also when during the course of summary trial, it appears to the Magistrate that nature of case was such that it was desirable to try it as a summon trial, he has power to recall any witness who has been examined and proceed to re-hear the case in the manner provided in the Code. 7. The difference between summary trial and summon trial is thus obvious. In summary trial after the accused is summoned, his plea is to be recorded under section 262 (g) of Cr.P.C. and his examination if any can be done by MM and a finding can be given by the court under section 263(h) of his examination. The same procedure is to be followed by the MMs for offence of dishonour of cheque. If proviso a, b c to Section 138 N.I. Act are shown to have been complied with, technically the commission of offence stands c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is his defence on the very first hearing when the accused appears before the Court. If the accused does not appear before the Court of MM on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of MM as the High Court cannot usurp the powers of MM and entertain a plea of accused why he should not be tried under section 138. This plea as to why he should not be tried under section 138 is to be raised by the accused before the Court of MM under section 251 under section 263 (g) of Cr. P.C. Along with his plea he can file necessary documents and also make an application, if he is so advised, under Section 145(2) of N.I. Act to recall the complainant to cross-examine him on his plea of defence. However, only after disclosing his plea of defence he can make an application that the case should not be tried summarily but as a summon trial case. This application must disclose the defence of the accused and the reasons why he wants the case to be tried as a summon trial. 9. An argument is raised that the accused, under Article 21 of Constitution of India, has a right of silence in a criminal trial and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness (es) and then only the court shall recall the witness by recording reasons thereto. 10. The procedure now being adopted by the MMs is totally contrary to the provisions of Code of Criminal Procedure and Negotiable Instrument Act. Presently, after summoning the accused, the complainant and his witnesses are asked to re-appear and give evidence again and that is the reason that cases keep on lingering for complainant's evidence for years together and such accused who have documentary evidence of their not being liable to face tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit is required to be kept on record by the Court. The second part of Sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/she may request the Court to call the complainant for cross-examination. x x x x x 7. The learned Counsel for the applicant has submitted that Section 145(2) of Negotiable Instruments Act consists of two parts. As per Section 145(2) the Court shall on the application of the prosecution or the accused summon and examine the person giving evidence on affidavit as to the facts stated therein. It is submitted that this provision leaves no discretion to the trial Court and in the event that an application is made, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of summary trial shall stand defeated if the court of MM tells the accused persons, who have been served, to come to the court repeatedly till the other accused are served. The plea of the accused is to be recorded on the day of his appearance under the summary trial and if that accused gets his plea recorded, he is at liberty to lead evidence in support of his plea and the court cannot tell him to keep coming repeatedly either in person or through counsel due to non appearance of other accused persons. The court, in such a case, asks him to disclose his defence and to prove his defence. In case court feels that the case should not be tried summarily and all the accused persons must necessary be tried together, then alone the court should ask the accused to wait but if the accused / respondent has a valid defence to show that he need not face trial because of a specific defence and he was prepared to lead evidence to this effect, he should be directed to lead evidence in support of his plea. 15. In most of the cases, the court of MM may not feel necessary that a sentence of imprisonment of more than one year should be inflicted. Unless the court, for reasons to be given, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence. Step III : If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. Step IV : To hear arguments of both sides. Step V : To pass order/judgment. 18. In all above Criminal Miscellaneous Petitions the petitioners have come to this Court raising one or the other defence. I consider that since summoning order in all these cases have been issued, it is now the obligation of these petitioners to take notice under section 251 of Cr. P.C., if not already taken, and enter their plea of defence before the concerned MM court and make an application, if they want to recall any witness. If they intend to prove their defence without recalling any complainant witness or any other witness, they should do so before the Court of MM. These petitions are, therefore, he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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